JUDGMENT Amitava Lala, J.
1. This is a review application. According to us, this review application has been filed with insufficient Court fees. Therefore, the same is liable to be dismissed in limine. It further appears that the writ petition is filed with the incorrect name of Hon'ble Judges passed the original order dated 20th April, 2006 for which also the application is liable to be dismissed in limine. In spite of the aforesaid conduct the Court did not ignore the contents of the petitioner in support of the review application, but allowed to make submission on the point so that instead of deciding the matter in peace meal manner, could be decided on all the points.
2. The original writ petition was filed praying inter alia as follows:
I. Issue a writ order or direction in the nature of mandamus directing the police of police station Loni, District-Ghaziabad. to investigate the Case Crime No. 690 of 2001 under Section 307 I.P.C. Police- Station loni, District Ghaziabad and also the case of Crime No. 2001, Police Station Gokulpuri, District Uttar Purvi Delhi under Sections 364, 302, 201, I.P.C.
II. Issue a writ order or direction in the nature of mandamus directing the police of Police Station Gokulpuri, District Uttar Purvi Delhi, not to investigate the Case Crime No. 334 of 2001 Police Station Gokulpuri, District Uttar Purvi Delhi under Sections 364, 302, 34, I.P.C.
III. Issue a writ order or direction in the nature of mandamus to transfer the investigation of Case Crime No. 334 of 2001 under Sections 364, 302, 201, I.P.C. Police Station Gokulpuri, Delhi, to other independent agency like C.B.C.I.D.
IV. Issue any other writ order or direction which this Hon'ble Court may deem fit and proper under the circumstances of the case.
V. Award the Costs.
3. Earlier in disposing the writ petition, the parties were heard at length and the following order was passed:
It appears that the petitioner has made a prayer directing the police authority of District Ghaziabad to investigate the matter and further directing Police Station Gokulpuri, District Uttar Purvi Delhi not to investigate the Case Crime No. 334 of 2001 under Sections 364, 302, 34, I.P.C. These issues arc not very much germane for due consideration since the petitioner himself made a prayer for transferring the investigation to an independent agency like CB.C.I.D. by deleting the name of C.B.I. However, the learned Counsel appearing for the respondent No. 4 contended that in his copy he is asking transfer of the investigation of the matter to C.B.I. We have checked up the copy and found that the statement of the learned Counsel is absolutely correct. Learned Counsel appearing for the respondent also contended that one of the relative of the complainant has already filed a writ petition before the Delhi High Court for the purpose of transferring the investigation to C.B.I. It has also contended by the learned Counsel appearing for the respondent that the concerned Bench of the Delhi High Court called for the record of the previous case being numbered as Writ Petition No. 205 of 2002 wherein the petitioner hereunder had made an impleadment application and suppressing the fact that the writ petition has been filed herein. Under such circumstances we do not find any reason to keep the writ petition pending unnecessarily. It will lead to multiplicity of the proceedings. There is no occasion to continue that the order of stay which has been granted earlier as an interim order by a Bench of this Court. Hence the writ petition stands dismissed in view of the above observation. Interim order stands vacated. No order is passed as to costs.
4. The contents of the review application on the part of petitioner on merit that the whole controversy of the writ petition pertains to point of territorial jurisdiction of the Police Station Loni, District Ghaziabad within the State of Uttar Pradesh and not under the Police Station Gokulpuri District Uttar Purvi within the State of Delhi. According to the petitioner that the Investigating Officer of Police Station Gokulpuri District Uttar Purvi Delhi overstepped his jurisdiction to carry out the investigation pertaining to the Case Crime No. 334 of 2001 under Sections 364, 302 and 201 of Indian Penal Code when the murder of the deceased was allegedly committed in village Jawli, Police Station Loni, District Ghazaiabad, Uttar Pradesh. According to the petitioner no offence was committed within the territorial jurisdiction of Police Station Gokulpuri, District Uttar Purvi, Delhi.
5. Ultimately it was submitted that there was no question of any deliberate suppression of fact by the petitioner in the writ petition. Moreover, the writ petition was filed before this Hon'ble Court prior to Criminal Writ Petition No. 205 of 2002 (Virender Singh v. State of U.P.& Ors.) filed in the Delhi High Court.
6. In support of the contention of the petitioner the learned Senior Counsel cited the judgment of the Supreme Court reported in (2000) 7 S.C.C.640 ( Navin Chandran N. Majithia v. State of Maharasthra and Ors.) to establish that the mere fact of lodging FIR in a particular State cannot be the sole criteria to decide that no cause of action has arisen even partly within the territorial limits of jurisdiction of another State. The High Court before which the writ petition is filed must ascertain whether any part of the cause of action has arisen within the territorial limits of its jurisdiction. It depends upon the facts in each case. Factually therein the major portion of cause of action arose at Bombay but FIR was registered at Shillong. It was also held that the place of residence cannot be the criteria for the purpose of determining the Jurisdiction. Factually therein a false complaint against the petitioner was filed at Shillong in the State of Meghalaya. The Court held that so far as the question of territorial jurisdiction with reference to criminal case is concerned the main fact is to be considered at the place where the alleged offence was committed.
7. In the instant case two FIR were lodged. One F.I.R. is dated 12th September, 2001 in Case Crime No. 690 of 2001 under Section 307 I.P.C. Police Station Loni, District Ghazaiabad, Uttar Pradesh and the other F.I.R. dated 13th September,2001 under Sections 364, 302, 34, I.P.C. Police Station Gokulpuri, District Uttarpurvi in Case Crime No. 334 of 2001 about the incident of 12th September, 2001. If both the FIR is read by side by side it will be seen the corroborative effect of both the cases will come out. From the FIR of the Case No. 334 of 2001 reflection of Crime under Section 364 appears to be held at Police Station Gokulpur, Uttar Purvi, Delhi when the alleged crime under Section 302 occurred at village Jawli, Police Station Loni, District Ghaziabad, Uttar Pradesh. Since several persons were involved with common intention reflection of crime under Section 34 I.P.C. is available in both the places. So far as the FIR of Case Crime No. 690 of 2001 is concerned the same is under Section 307 I.P.C. and allegedly held at Jawli Police Station Loni, District Ghaziabad. The Supreme Court categorically held in the referred judgment "It depends upon facts in each case". Therefore, we have to see similarities or dissimilarities of both the cases. From the referred case of the Supreme Court it appears to us no heinous crime is involved in that matter but dispute appears to be quasi Civil in nature. Excepting filing of FIR no cause of action shown to have been arisen at Shillong in the State of Meghalaya. Two shareholders of the Company took over the management and control as Directors and form another company at Shillong in the State of Meghalaya. In that case the entire transaction upon which the complaint was purportedly based had taken place at Bombay and not at any other place outside State, much less at Shillong or any other place in the State of Meghalaya. Therefore, the complaint could not/ought not to have been entertained by the police at Shillong.
8. According to us there is no bar for any writ Court to transfer the investigation from one jurisdiction to other or get it transferred accordingly. This is necessary when the cause of action arose in two places. In the instant case apparently cause of action arose in two places but such two places belong to two provinces adjacent side by side. Therefore, either the investigation will be made by the police of the two States jointly or by an independent police/intelligence of the Union of India. This circumstance is different from the factual circumstance of the referred case.
9. Against this background when the Court found that parallel writ petition is pending in the Delhi High Court for the purpose of transferring the investigation to C.B.I. and the present writ petitioner already made an impleadment application in such writ petition and cause of suppression of another writ petition is there, this Court dismissed the writ petition but allowed him to proceed therein to avoid the multiplicity of the proceedings. It was considered by the Court at the time of hearing that the petitioner was also inclined to send the investigation to C.B.I. but deleting C.B.I. incorporated the word C.B.C.I.D.
10. According to us, if no cause of action arose in one particular place in the District or in the State then it is not proper to say that since the FIR has been lodged in some other place jurisdiction of the Court therein will be available to such person. In other words mere filing of F.I.R. will not give the cause of action. Cause of action arose from committing of offence. If offence committed on both the places, both Courts will have part jurisdiction to entertain, try and determine the matter. Smaller or larger part of cause of action cannot be the criteria. Had there been no cause of action in the State of Delhi but the FIR has been lodged wrongly therein, this Court could have called for the records and could have pass necessary orders considering the merits of the case. But when the part of cause of action arose within the State of Delhi and the petitioner himself wanted to implead to take a defence in respect of referring the matter to C.B.I., it was not appropriate for this Writ Court to pass an order interfering with the same.
11. So far as the Court Fees are concerned it is become necessary to give certain explanations. In 1971 A.L.J. 958 ( Lal Behari Singh and Anr. v. Deputy Director of Consolidation, U.P. Lucknow in Camp at Faizabad and Ors.) a Division Bench of this High Court held that Court Fees on review applications arising out of writ petitions is payable as per Schedule II, Article 1(e)(5). A Full Bench judgment reported in 1968 A.L.J. 210 ( Mall Singh and Ors. v. Smt. Laksha Kumari Khaitan and Ors.) was referred to such Division Bench Judgment for the purpose of consideration of applicability of the Civil Procedure Code The Court did not consider the ratio but said that the Full Bench cannot have any assistance in the matter. The Division Bench held that the word 'judgment' alone does not fall for interpretation. The necessary words are 'decree', 'plaint' and 'memorandum of appeal'. Meanings of those words given in the Code of Civil Procedure. On the other hand the proceedings under Article 226 of the Constitution shall be initiated by means of an application. There is wide difference from the plaint and the decree. A decree is appealable. The decree is appealable under Section 96 or under Sections 100 of the Code of Civil Procedure. Orders are appealable under Section 104 and Order XLIII of the Code of Civil Procedure. It is obvious that judgments in civil suits and appeals are followed by decree. Judgments in a writ petition and appeals are not followed by decree but by formal order. It is, therefore very difficult to accept that the formal order which follows the judgment must be deemed to be a decree. The Court has also given emphasis by saying that the Court Fees is fiscal statute and, therefore, it must be considered strictly and if such construction has put upon the provision of Court Fee Act, no decision can be given against the subject by 'deeming'.
12. According to us the application for review is not a miscellaneous application but a substantive application. A decree is no better than a final order. The only difference is a decree will necessarily be drawn up and executed wherein the final order of the writ jurisdiction under Aricle 226 of the Constitution may not be drawn up and formally executed. After all both are arising out of final verdict. As per Law Laxicon, 1997 Edition, a decree is the final order of a Court in a suit. It closely resembles, but is not identical with 'Judgment'. The essence of the distinction between a decree and order seems to be in the nature of the decision, whether it is an adjudication of a particular kind or not, rather than in the manner of its expression. Therefore, decree of a civil suit cannot be differentiated from a final order of the writ jurisdiction in that way. It is also difficult to construe that judgment of the writ petition followed by a formal order will be construed as outcome of bare miscellaneous application. Sections 141 of Code of Civil Procedure is applicable to the miscellaneous proceedings. But by virtue of 42nd amendment of the Code of Civil Procedure (Amendment) Act, 1976 an explanation is inserted therein. However the section as a whole with explanation is quoted hereunder:
The procedure provided in this Code in regard to suits shall be followed, as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction.
Explanation.- In this section, the expression "Proceedings" includes proceedings under Order IX, but does not include any proceeding under article 226 of the Constitution.
13. This amendment came into force alter passing of the judgment of this High Court on 26th July, 1971. Therefore, for the said reasoning alone the judgment and order can be said to per incuriam. Apart from that a five judges Bench of the Supreme Court in State of Uttar Pradesh and Ors. v. Dr. Vijay Anand Maharaj held that jurisdiction to issue writ under Article 226 is original jurisdiction as distinguished from the appellate or revisional jurisdiction. It may be described as extraordinary original jurisdiction. It could not therefore be contended that a petition under Article 226 is a continuation of the proceedings. In S.A.L. Narayan Row and Anr. v. Ishwarlal Bhagwandas and Anr.s another five judges Bench held that there is no reason for restricting the expression 'civil proceeding' only to those proceedings which arise out of civil suits, or proceedings which are tried as civil suits, nor is there any rational basis for excluding from its purview proceedings instituted and tried in the High Court in exercise of its jurisdiction under Article 226, where the aggrieved party seeks relief against infringement of civil rights by authorities purporting to act in exercise of the powers conferred upon them. In Ramesh and Anr. v. Gendalal Motilal Patni and Ors. again five judges Bench of the Supreme Court held that under Article 133 an appeal can lie not only in respect of a judgment or decree or final order passed in the exercise of appellate or original civil jurisdiction but also of extraordinary original civil jurisdiction. Article 133 not only discards the distinction between appellate and original jurisdictions but deliberately used words which are as wide as language can make them. The drafters of the Constitution were aware that a new jurisdiction was being conferred on the High Courts by Article 26 of the Constitution and proceedings before any court or Tribunal within the jurisdiction of the High Court, including in appropriate cases before Government, would be brought before the High Court and dealt with by issuing writs of certiorari, mandamus and prohibition. A Full Bench of the High Court as reported in 1968 A.L.J. 210 (supra) considered all the judgments. But in spite of referring such Full Bench Judgment, the Division Bench did not consider these aspects by saying that it is not at all necessary to enter into the controversy whether the proceedings arising out of the petition under Article 226 are of a Civil nature or not. In that way it was restricted into a narrow campus.
14. In 2005(28) AIC 78 SC (Rekha Mukherjee and Ashis Kumar Das and Ors.) it was held by the Supreme Court that the right of review is a statutory right. Such right can be invoked if the conditions therefor are fulfilled. So is a right of appeal. A right of review and right to appeal stand on different footings although some grounds may be overlapping. If a review is granted, the decree stands modified but such modification of a decree is not an ancillary or a supplemental proceeding so as to be revived upon setting aside the decree granting review.
15. If we go through the Section 114 and Order XL VII of the Code of Civil Procedure it will be seen that appeal and review are two independent proceedings arising out of decree or order. The review is available when no appeal is available or where in spite of having opportunity of appeal, no appeal was preferred. Therefore in case review is rejected, the order would not be appealable for reconsideration of cause of rejection of review. Such order of review is final. There is no scope of double opportunities. Therefore, the review is a comparable proceedings of appeal arising out of original cause. Hence by no means Court Fees meant for miscellaneous applications for Rs. 5/- as per Schedule II(1)(e)(5) of the Court Fees Act 1870 will be applicable in case of review. According to us cither the Court Fees will be fixed on the basis of Schedule I(4) or (5) being Ad valorem or as per Schedule II(1)(e)(2) as fixed Court fees. However State of Uttar Pradesh, by way of amendment introduced sub number (f)(2) under number 1 of the Schedule II made the following fixed Court Fees:
Under Article 226 or Article 227 of the Constitution or by way of special appeal against a judgment or order including a judgment or order passed on a petition filed before the commencement of the Court Fees (Uttar Pradesh Amendment) Act, 1970 passed by a Single Judge of the High Court thereon.
16. Since the Court Fees are uniformally made applicable to the proceedings under Article 226 or Article 227 or special appeal being the appeal as per the Rules as Rs. 100/-, it will be rational to say that in case of review also arising out of such proceedings the same Court Fees will have to be paid.
17. It is remembered that taking the advantage of the situation numerous applications are being made in the form of recall or review and when it is rejected the appeal is being preferred which is absolutely illegal. Either the application will be recall or review. If a review application is rejected there is no scope of preferring an appeal from such order. Therefore, it is high time to segregate the review applications being substantive applications like the appeals from other miscellaneous applications to discourage unwanted applications. Hence we recommend the State to amend the Schedule II(1)(e)(2) by incorporating the word 'review' therein and till the time formal amendment is not made, the Registry will be entitled to direct the litigants to put the Court Fees for the purpose of review following the judgment and order of this Court. The Registry is directed to take up the follow up action. A copy of the order be given to the learned Government Advocate.
18. However, in totality, we do not find any re-viewable cause available in this matter to interfere with it in merit. Therefore the same is dismissed. However, the parties will be entitled to get certified copy of the order subject to the correction of the names of the Hon'ble Judges and payment of appropriate Court fees made of the review application as per the ratio of this judgment.
19. However, no order is passed as to costs.
R.N. Misra, J.
20. I agree.